June 29, 2012

Mitt Romney Slams Health Care

Romney's view of the Affordable Care Act remains unchanged, and his criticism on President Obama will continue as Romney declared the Supreme Court’s ruling on health care to be a violation of personal freedom and is bad for the economy. To the Romney Campaign the ruling on health care, which was upheld as a tax, has made the decision an easy target for Republicans who traditionally oppose tax increases. Gov. Mitt Romney on Thursday responded to the health care ruling saying:
What the court did today was say that ObamaCare does not violate the Constitution. What they did not do was say that ObamaCare is good law or that it's good policy. ObamaCare was bad policy yesterday. It's bad policy today." 
Politico examines the issue further in relation to Romney’s campaign here.

June 28, 2012

McConnell: Full Repeal of ObamaCare Rulings

Senate Minority Leader Mitch McConnell (R-Ky) immediately took the Senate floor this morning to respond to the Supreme Court's ruling on health care. Senator McConnell called for a full repeal of the Affordable Care Act rulings in his floor speech:
“Republicans won’t let up whatsoever in our determination to repeal this terrible law and replace it with the kind of reforms that will truly address the problems it was meant to solve. 
“We pass plenty of terrible laws around here that the court finds constitutional. Constitutionality was never an argument to keep this law in place, and it’s certainly not one you’ll hear from Republicans in Congress. 
“There’s only one way to truly ‘fix’ Obamacare, and that’s a full repeal that clears the way for common-sense, step-by-step reforms that protect Americans’ access to the care they need, from the doctor they choose, at a lower cost. And that’s precisely what Republicans are committed to doing."

Individual Mandate Surivives as a Tax

The Supreme Court upheld the individual insurance requirement at the heart of President Barack Obama's health care overhaul. Breaking away from the court’s other conservative justices, Chief Justice John Roberts announced the judgment that allows the law to go forward with its aim of covering more than 30 million uninsured Americans. From Chief Robert’s opinion:
“We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation's elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions… 
"Beginning in 2014, those who do not comply with the mandate must make a '[s]hared responsibility payment' to the Federal Government. That payment, which the Act describes as a 'penalty,' is calculated as a percentage of household income…”
Read more of Associated Press’s article here.

June 26, 2012

Holder Contempt Vote and Health Care Set for Thursday

The House plans to vote Thursday on a resolution that would hold Attorney General Eric Holder in contempt for failing to produce documents in the "Fast and Furious" gunrunning investigation. The Supreme Court’s ObamaCare ruling will likely overshadow the vote, but a contempt citation could compound a politically disastrous day for Obama if the court overturns the health care law. The Hill explains the scheduled vote:
“A spokeswoman for Majority Leader Eric Cantor (R-Va.) confirmed on Monday that the vote is scheduled for Thursday. Republicans have said the vote could be postponed if Holder complies with subpoenas issued by the Oversight and Government Reform Committee, but President Obama has invoked executive privilege to shield Holder from releasing them.”

Viewer’s Guide to Health Care Ruling

The Supreme Court will likely weigh in on President Obama’s health care reform Thursday at 10:00am. The flood of opinions, dissents and concurring judgments will undoubtedly result in a confusing outcome for a complex law. POLITICO has provided a viewer’s guide to help clarify the ruling:
"What is the court going to decide? There are four questions before the court. They are: 
• Is the individual mandate constitutional? 
• If the mandate is found to be unconstitutional, how much of the health reform law should go down with it? Or is the mandate “severable” — meaning it can be struck down by itself? 
• Is the health law’s Medicaid expansion constitutional? 
• Does a tax law prevent the court from even addressing the mandate issue now, before it goes into effect in 2014?"
Tune into SCOTUS Blog Thursday morning at 10:00am for a live feed of the Supreme Court's ruling.

June 25, 2012

Supreme Court Declines to Review Citizens United

Montana’s ban on corporate political spending has been overturned. In a 5-4 split, the Supreme Court reaffirmed its Citizens United v. Federal Elections Commission decision, which held that corporations and unions were entitled to the same free-speech protections as citizens. The court released a one-page opinion that closed the door on possible oral arguments in American Tradition Partnership v. Bullock. Alex Roarty of The National Journal describes the failed case:
"The current case, American Tradition Partnership v. Bullock, stemmed from a century-old Montana law that prohibits corporations from spending money on political campaigns. The effort, joined by more than 20 states, stipulated that states should be allowed to carve out their own rules to regulate political fundraising and spending, an argument backed by the Montana Supreme Court when it ruled in favor of the state law last year."
Senate Minority Leader Mitchell McConnell declared that the Supreme Court’s decision was “another important victory for freedom of speech.”

Justices Block Mandatory Life Terms for Juveniles

The Supreme Court ruled on Monday that states may not impose mandatory life sentences without parole on juveniles, even if they have been convicted of taking part in a murder.
“The justices ruled in a 5-to-4 decision that such sentencing for those under 18 violated the Eighth Amendment’s ban on cruel and unusual punishment. The ruling left open the possibility of judges’ sentencing juveniles to life imprisonment without parole in individual circumstances but said state laws could not automatically impose such sentences.”
Speaking for the majority Justice Elena Kagan claimed, “Mandatory life without parole for a juvenile precludes consideration of his chronological age… and prevents taking into account the family and home environment.” The two cases at issue were Jackson v. Hobbs and Miller v. Alabama, which both involve 14-year-old boys who had taken part in murders in Arkansas and Alabama. Chief Justice John G. Roberts writing for the dissent insisted “if a 17-year old is convicted of deliberately murdering an innocent victim, it is not ‘unusual’ for the murderer to receive a mandatory sentence of life without parole.”

Arizona Immigration Law Partially Survives Supreme Court

This morning the high court struck down several parts of the immigration law, which promises to further bolster President Obama's pull with the Latino vote. However, the court said that police can continue to ask the legal status of expected illegal aliens and can report them to federal officials, but can not impose its own penalties against illegal immigrants. Politico explores the ruling's implications on President Obama’s reelection:
“The Supreme Court’s ruling comes just over a week after Obama announced a major change in immigration policy, pledging not to deport most young people who came to the U.S. illegally as children. The move — a unilateral, executive-action version of the DREAM Act languishing in Congress … could deliver a significant political dividend to Obama from Latino voters in November.”

Silencing Conservatives

While you were hopefully enjoying a 3-day weekend, Senate Republican Leader Mitch McConnell and the Committee for Justice’s Curt Levey penned op-eds addressing the increasing threat to political free speech coming from the Left. In the Washington Post, Sen. McConnell explained his opposition to the Disclose Act that Democrats have been pushing since Citizens United. McConnell pointed out that “Selective disclosure would be used to harass people who have participated in the political process or to scare others from doing so."

At FoxNews.com, Mr. Levey warned that “groups on the left are increasingly enlisting the coercive power of government in their intimidation and harassment campaigns” against conservatives, thus “threaten[ing] the First Amendment’s guarantee that government shall not abridge the freedom of speech." Levey concludes that
“Media Matters and other groups on the left have the right to boycott, lawfully protest, and denounce opponents to their heart’s content. What they don’t have is the right to commit criminal acts or enlist the government’s help in silencing conservatives – no matter how morally superior and self-righteous the left may feel.”
Sen. McConnell ends by noting that
“[In 2000], I feared that a government could use [disclosure] information against people, just as President Richard Nixon did. I did not know that a decade later [the Obama] administration would validate those concerns and that a free press would do so little to hold it accountable.”


June 22, 2012

Supreme Court Leaks Less than the CIA

Justice Ginsburg recently spoke to an audience at the American Constitution Society but refrained from even hinting of the Court's undisclosed decision in the much anticipated health care rulings. She remarked, “ Those who know don’t talk. And those who talk don’t know.” There is a fascinating contrast between the Supreme Court’s ability to keep a secret and the national security bureaucracy who appear to abide the opposite rule: “Those who know talk quite a lot.” Law Professor Jack Goldsmith explores the issue:
“Only 70 or so people inside the Court—the justices, their clerks and senior staff, and a few Court employees—would be privy to the outcome of the health care case prior to its announcement. By contrast, more than 4.2 million people—almost all located in or associated with the executive branch—hold security clearances. The circle of secrecy for any particular sensitive operation is much smaller, but typically includes hundreds of people, often more.”
It is believed that the Supreme Court will release their decision on President Obama's health care reform as early as Monday or as late as Thursday.

Supreme Court Rescinds Fines Against Fox and ABC

The Court ruled 8-0 against the FCC’s policy regulating curse words and nudity on broadcast television. The fines and sanctions, totaling nearly $1.24 million, against ABC and Fox will not be imposed and the networks will be free to adjust their policies to avoid future conflict with the FCC. Writing for the majority, Justice Kennedy stated:
“… Fox and ABC ‘lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies. Given this disposition, it is unnecessary for the court to address the constitutionality of the current indecency policy…’”

June 21, 2012

The New York Times' Broccoli Obsession

Last week, the New York Times ran a lengthy and sarcastic front-page article attacking the use of broccoli to illustrate why the ObamaCare individual mandate is unconstitutional. My  critique of that article was just posted at American Thinker. In part, I state:
"Because, in a sense, the broccoli example is a reductio ad absurdum ridiculing ObamaCare's overreach, the Times disingenuously attempts to ridicule this legitimate ridicule."
Using typical media bias techniques, the Times attempts to marginalize ObamaCare opposition as confined to extremists, seeks out a professor to proclaim ex cathedra that broccoli is a “simplistic metaphor” and “such a bad argument,” implies that justices would be naïve to strike down the law on the basis of this inapt “defining symbol,” and disputes “that limiting the commerce clause protects personal freedom,” which it derides as a mere “notion” in the sense of a foolish idea. 
For reasons elaborated upon in my article, I conclude:
"[I]f ObamaCare is upheld, there will be no end to interference in people's lives -- far more than already exists. There is never any end to the schemes concocted in the fertile minds of petty martinets who derive their greatest satisfaction in life from bossing other people around, in the guise of legitimate exercise of government power.

"Despite the Times' attempt to belittle the broccoli example as a far-fetched 'notion' of right-wing extremists, broccoli will be just the beginning."

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Zimmerman’s Encounter with Trayvon Martin Made Public

George Zimmerman’s lawyers posted on his website a first hand account of the events that that led to the death of Trayvon Martin. Zimmerman continues to plea that he acted in self-defense and he has now shared written statements to the police and various recordings of interviews with investigators to back up his story. Minnesota Public Radio provides this insight :
“Zimmerman has pleaded innocent to a charge of second-degree murder. Trayvon's family and supporters dispute much of his account, saying that Zimmerman racially profiled the African-American teenager, precipitated the encounter by following Trayvon through the neighborhood and should not have been armed.”

Supreme Court Saves ObamaCare and Immigration for Next Week

The Supreme Court is expected to issue opinions on ObamaCare and Arizona’s controversial illegal immigration law in the coming week. These two cases have received most of the spotlight in recent months, but one must not forget the Court has yet to rule in the cases dealing with the Stolen Valor Act, broadcast indecency and juvenile sentences. SCOTUS Blog and the Wall Street Journal break the cases down in simple terms at their respective websites here and here.

Issa’s Panel Pushes Holder Closer to Contempt

The House Oversight and Government Reform Committee voted along party lines and approved contempt of Congress against Attorney General Eric Holder for his failure to comply with a subpoena. All 23 Republicans of the committee voted for the resolution, while all 17 democrats opposed it. The Hill reports “the vote came just hours after Obama escalated the conflict by sending a letter to the committee claiming executive privilege over the documents Issa had sought.” Chairman Darrell Issa (R-Calif.) was quoted saying:
“I still believe that a settlement, rendering the process of contempt unnecessary, is in the best interest of the Justice Department, Congress and those most directly affected by Operation Fast and Furious... I urge Attorney General Holder and President Obama to reconsider their decision to withhold documents that would allow Congress to complete its investigation.”
Following the hearing, House Speaker John Boehner (R-Ohio) and Majority Leader Rick Cantor (R-Va.) announced that the House will vote on the contempt measure next week.

June 20, 2012

CA State Bar: Let Illegal Immigrant Practice Law

The California State Bar stands behind Sergio Garcia and has declared in a court filing that the illegal immigrant should be allowed to practice law in California. However, the California Supreme Court has put Garcia’s application on hold as it considers the ramifications this case could have on undocumented immigrants and their eligibility to practice law in California. Bob Egelko of the SF Gate reports:
“The court cited two federal laws as potential obstacles. One prohibits illegal immigrants from receiving any ‘state or local public benefit,’ including a professional license provided by a ‘state agency.’ The other prohibits employers from knowingly hiring illegal immigrants.”

*Correction: Rubio is Being Vetted for VP Slot

Mitt Romney responded last night to the rumors that alleged Senator Marco Rubio, R-Fla., was not being considered for the vice president position:
"There was a story that originated today, apparently at ABC, based on reports of supposedly outside, unnamed advisers of mine… They know nothing about the vice presidential selection or evaluation process. There are only two people in this country who know who are being vetted and who are not, and that's Beth Myers and myself… Marco Rubio is being thoroughly vetted as part of our process.”
Now that the rumors are dispelled Jonathan Karl of ABC News, who originally reported the speculation regarding Rubio, explains why Romney reached out to make an official statement here.

June 19, 2012

Holder to Meet With House Reps. Before Vote

Attorney General Eric Holder will meet with Rep. Darrel Issa (R-Calif.) today as part of his attempt to stall a vote to hold the Attorney General in contempt of Congress. Although Rep. Issa has agreed to meet with Holder, no initiatives to delay the contempt vote have been made. Jordy Yager of The Hill explains the issue:
“Issa has said he believes the DOJ is involved in a 'cover-up,' arguing that the high-level department officials clearly knew about the controversial gun-walking tactics and perhaps even approved them. 
"Holder has denied that he ever knew about the tactics. And though he has defended most of the close circle of DOJ officials around him, the top two officials at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which oversaw Fast and Furious, were reassigned.”

Clemens Found Not Guilty

Roger Clemens was cleared Monday on all charges that he obstructed and lied to Congress denying he used performance-enhancing drugs to boost his long career as one of the most famous pitchers in baseball history. The high profile trial and verdict come as another blow for the Department of Justice’s recent failure to convict presidential candidate John Edwards.
“Clemens, 49, was charged with two counts of perjury, three counts of making false statements and one count of obstructing Congress when he testified at a deposition and at a nationally televised hearing in February 2008. The charges centered on his repeated denials that he used steroids and human growth hormone during a 24-year career produced 354 victories...
“Clemens' lawyers contended that the pitcher's success resulted from a second-to-none work ethic and an intense workout regimen dating to his high school days.”

Rubio Appears to Be Unlikely VP Candidate

“Even before the Republicans chose a presidential nominee it was widely assumed that Sen. Marco Rubio, R-Fla., would be at the top of anybody’s list of vice presidential candidates. The reasons are obvious: Not only is he young, charismatic and wildly popular with conservatives, but he could also help Republicans win a key state (Florida) and make inroads with Hispanics.”
But knowledgeable Republican sources have explained that Romney’s vice presidential search team is not vetting Rubio. Jonathan Karl of ABC News reports that Rubio “has not been asked to complete any questionnaires or been asked to turn over any financial documents typically required of potential vice president candidates.” The Romney Campaign has made no official comment on the matter; however, it appears that a Romney/Rubio pair is improbable.

June 18, 2012

Romney Wouldn’t Bail Out European Economy

“Mitt Romney said on Sunday that the U.S. should not take any steps to ‘bail out’ the European economy, and that he hopes whatever happens there, ‘our banking sector is able to weather the storm.’”
His comments on CBS’s Face the Nation addressed many Americans' fear of the European financial crisis carrying over into the U.S. economy. Romney also asserted, “We’re [U.S.] not going to send checks to Europe. We’re not going to bail out the European banks. We’re going to be poised here to support our economy.”

Justice Scalia and Bryan Garner on The Interpretation of Legal Texts

A new book co-authored by Supreme Court Justice Antonin Scalia and legal writing expert Bryan Garner faults judges for unprincipled decision making that has tarnished the reputation of the judiciary. The authors claim:
"The descent into social rancor over judicial decisions is largely traceable to non-textual means of interpretation, which erode society's confidence in a rule of law that evidently has no agreed-on meaning... Our legal system must regain a mooring that it has lost: a generally agreed-on approach to the interpretation of legal texts."
The new book, Reading Law: The Interpretation of legal Texts, will be published on June 19, 2012 and is a follow up to the authors’ 2008 book Making Your Case: The Art of Persuading Judges.

June 15, 2012

Request to Approve Health Care Broadcast

A long list of news organizations have asked the Supreme Court to release, for broadcast, the Justices' oral announcements of the coming decision on the constitutional of the federal health care law. In the letter sent by the Reporters Committee for Freedom of the Press the news outlets explain:
“There is a strong interest nationwide in the Court’s opinion and any comments by a member of the Court that may accompany its announcement. Such access would allow the public to be informed of the Court’s ruling in a timely manner.”
However, it appears the chance for the court to accommodate such a request is remote to nonexistent. SCOTUS Blog reports.

Senator Leahy Promises to Keep Judicial Nominees Moving

“Senate Judiciary Chairman Patrick Leahy (D-Vt.) today said he would continue to try confirming President Barack Obama’s judicial nominees, despite a Senate GOP leadership decision to block all circuit court nominations until after the November elections.”
Leahy’s remarks clash with Senate Minority Leader Mitch McConnell’s recent decision to blockade Obama nominees by invoking the Thurmond Rule. The Thurmond Rule holds that within six months of a presidential election the opposition party can refuse to allow votes on circuit court judges. Republicans maintain that they are on the same pace of confirming circuit judges as Democrats were under George W. Bush and therefore are entitled to invoke the Thurmond Rule.

Obama Stops Deporting Some Illegal Immigrants

In the wake of a heated election year, the Obama administration will stop deporting and begin granting work permits to young illegal immigrants who came to the U.S. as children. The policy change bypasses Congress and partially achieves the goals of the failed DREAM Act; affecting as many as 800,000 immigrants who have lived in fear of deportation. Alicia Caldwell of the Associated Press considers the issue in light of the presidential campaign:
“The move comes in an election year in which the Hispanic vote could be critical in swing states like Colorado, Nevada and Florida. While Obama enjoys support from a majority of Hispanic voters, Latino enthusiasm for the president has been tempered by the slow economic recovery, his inability to win congressional support for a broad overhaul of immigration laws and by his administration's aggressive deportation policy.”

McConnell on Threat to Free Speech

Statement of CFJ President Curt Levey on today’s speech by Sen. Mitch McConnell:

Senate Republican Leader Mitch McConnell will give an important speech this morning on the “Growing threats to our First Amendment rights.” Sen. McConnell’s remarks are not yet available, but we’re guessing he will address threats from the Left, including from the Obama Administration and perhaps outside groups on the Left.

We take this opportunity to address the latter, specifically the threat to free speech posed by groups on the Left who believe that silencing opposing viewpoints is more effective than refuting them. Some people dismiss this threat as outside the scope of the First Amendment, which applies to actions by government. However, left-wing groups are increasingly crossing the First Amendment line by enlisting – or even partnering with – government to do their dirty work.

Examples include abusive lawsuits and other abuses of the court system; invasion of privacy through Freedom of Information requests; use of 911 calls to harass (see recent SWAT’ing of conservative bloggers); attacks on broadcast licenses; enactment of speech codes at state universities; and other attempts to criminalize speech.

And that’s on top of silencing techniques employed by the Left that, while non-governmental, are either unlawful or dangerously close to the line of illegality. Examples include espionage, perjury, computer hacking and denial of service attacks, harassment and intimidation of conservatives and their families, and various invasions of privacy.

While conservative groups are not free of sin when it comes to trying to silence opposing points of view, the use of unlawful or governmental methods to do so has been largely limited to the Left. One of the worst abusers is the controversial left-wing group Media Matters.

To conservatives, we say that the answer to the “growing threats to our First Amendment rights” is to defend free speech rather than attempting to fight the Left’s fire with fire. From the summary of Sen. McConnell’s speech – promising “a renewed defense of the right to free speech and [a] call on all Americans to unite and remain vigilant in defending the Constitution” – it appears that he will lead this charge.

Look for further discussion of this topic here in the days ahead. Meanwhile, feel free to call or write with any questions.

Sen. McConnell’s speech this morning will take place at the American Enterprise Institute (AEI) in Washington, DC. See here for more information.


June 14, 2012

Obama’s Reaction to Health Care Ruling

Karl Rove, former senior adviser and deputy chief of staff to President George W. Bush, examines President Obama's possible reactions to the Supreme Court health care ruling. Rove claims if President Obama respected the court's decision, whatever it may be, he “could pivot to the center and regain some of the high ground he occupied in his 2008 campaign.” However, this appears unlikely as the president continues to caution the high court:
“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress … [T]he biggest problem on the bench was judicial activism … this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.”

DOJ Abandons John Edwards Case

The Department of Justice announced on Wednesday that it wouldn’t pursue the remaining five felony charges against former presidential candidate John Edwards. Edwards was found not guilty on one felony charge of accepting illegal contributions from Rachel Mellon, but the jury was hung on the other five charges. Edwards’ attorneys released the following statement:
"'While John [Edwards] has repeatedly admitted to his sins, he has also consistently asserted, as we demonstrated at the trial, that he did not violate any campaign law … We are confident that the outcome of any new trial would have been the same. We are very glad that, after living under this cloud for over three years, John and his family can have their lives back and enjoy the peace they deserve.'"

June 13, 2012

Romney Boosted by Wall Street

Among financial-sector donors, Romney is out fundraising President Obama $37.1 million to $4.8 million. Many of the former Obama supporters in Wall Street have switched to Romney because "they feel that our country is in trouble -- that our economy is in trouble." Ken Griffin, founder of the Chicago-based hedge fund Citadel, shifted his generous donations from President Obama in 2008 to Gov. Romney this election year. Griffen told Politico:
"'It is critical that the next president appreciates that America’s prosperity is driven by the innovation and hard work of the American worker, whose valiant efforts have, in recent years, been undermined by the oppressive weight of government intervention.'"

Senate Majority Hinges on Four Swing States

The November senate races in Nevada, North Dakota, Maine and Virginia will be crucial to Republicans’ chances of removing the Democrat hold in the senate. Rosalind Helderman of The Washington Post analyzes the issue:
“Two of the states are held by Democrats, and two by Republicans. In three of the four — Maine, North Dakota and Virginia — the competitive November races were made possible by the retirement of popular incumbents who would have been strongly favored to win reelection … 
"Republicans feel especially confident about their chances for a November pickup in North Dakota, a deeply conservative state...  
"Virginia, meanwhile, will present a key test of the impact of spending by super PACs, an unpredictable new force that both parties are grappling with nationwide. A flood of independent dollars is expected to sweep through the commonwealth in an effort to influence the grudge match between two titans of Virginia politics."
Republicans will link their Democrat opponents to President Obama and his declining approval ratings to sway voters to side with their party.

June 12, 2012

Hurwitz Moves Closer to Ninth Circuit

The senate shut down a block on the nomination of Andrew Hurwitz; clinching the needed 60 “yes” votes to get around the cloture vote on the nominee. Despite the support of Hurwitz’s Republican home-state senators, many Republicans opposed Hurwitz nomination on grounds of judicial activism. Senator Chuck Grassley (R-Iowa) “urged the chamber to vote down the nomination” and insisted:
“We do not need to add another pro-defendant activist judge to the 9th Circuit or to any other court."
Later this week Andrew Hurwitz will likely receive the needed 50 votes to get a spot on the nation's busiest federal appeals court.

June 11, 2012

Obama's Gaffe Matters in General Election

In a press conference last Friday, President Obama assured the American people that " the private sector is doing fine." Many Democrats admit it wasn't the President's best moment, but insist that it was inconsequential for the election race. Chris Cillizza of the Washington Post believes otherwise:
"For Obama, winning in November is entirely dependent on two things: convincing average Americans that he understands their economic struggles and turning the race from a referendum on his handling of the economy into a choice between the two candidates' views on how best to manage the country’s financial situation. 
"Obama’s private-sector comments undermine both of those arguments. And that’s why this political gaffe can — and almost certainly will — matter."

House Panel Schedules Contempt Vote on Eric Holder

The House Oversight Committee will vote next week on whether to hold Attorney General Eric Holder in contempt of Congress. It's the fourth time in 30 years that Congress has issued a contempt action against an executive branch member. The dispute arises from Holder failing to turn over documents subpoenaed on October 12, 2011 in the Fast and Furious "gun-walking" investigation. Rep. Darell Issa (R-Calif.) wrote in an announcement of the vote:
"'The Obama Administration has not asserted Executive Privilege or any other valid privilege over these materials and it is unacceptable that the Department of Justice refuses to produce them. These documents pertain to Operation Fast and Furious, the claims of whistleblowers, and why it took the Department nearly a year to retract false denials of reckless tactics.'"

Arizona's Case Looms Closer in Supreme Court

The Supreme Court's decision is expected by the end of June on Arizona's controversial immigration law. Jacques Billeaud of the Associated Press reports, "legal experts expect that the court likely will uphold Arizona's requirement that police check the immigration status of people they stop" but opponents of the law could ask the courts to block enforcement on other legal grounds. Billeaud also relays the possible implications of the ruling on other sates:
"A decision in favor of Arizona could clear the way for other states to enforce immigration-check requirements and create an opening for states to take a larger role in immigration enforcement after mostly staying out of it for decades and letting the federal government handle it alone. 
"Five others states - Alabama, Georgia, Indiana, South Carolina and Utah - have enacted similar laws."
More on United States v. Arizona

Abortion Aside, Hurwitz Not Qualified

Statement of CFJ Executive Director Curt Levey on this afternoon’s Senate vote on the nomination of Andrew Hurwitz to the U.S. Court of Appeals for the Ninth Circuit:

Andrew Hurwitz brags that, while clerking for U.S. District Court Judge Jon Newman, he played a key role in writing the 1972 opinions that provided the basis for the Supreme Court’s reasoning in Roe v. Wade.  Pro-life groups are understandably opposed to his nomination. 
But this confirmation fight is really not about abortion.  CFJ does not oppose Hurwitz’s confirmation because of the pride he expresses in helping to bring abortion on demand to America.  CFJ believes judges are entitled to hold whatever political opinions they chose, as long as their opinions do not get in the way of their objective interpretation and application of the law while serving on the bench.
Similarly, this confirmation fight is not about Hurwitz’s role in inventing the constitutional right to abortion discovered in Roe.  That was forty years ago – when judicial activism and the living Constitution were all the rage – giving Hurwitz plenty of time to mature, reflect on the error in Roe, and recognize that judges shouldn’t invent new rights from whole cloth. 
In fact, many prominent liberal legal scholars have done just that, as liberal University of Pennsylvania Law Professor Kermit Roosevelt recognized in 2003:
“You will be hard-pressed to find a constitutional law professor, even among those who support the idea of constitutional protection for the right to choose, who will embrace the opinion [in Roe] itself rather than the result. … This is not surprising. As constitutional argument, Roe is barely coherent. The court pulled its fundamental right to choose more or less from the constitutional ether.”

The very same year that Roosevelt acknowledged Roe’s incoherence, 2003, Andrew Hurwitz wrote a law review article paying homage to Judge Newman’s and his own contribution to the legal reasoning in Roe.  At his recent Senate confirmation hearing, Hurwitz declined to walk back his celebration of Roe, despite being given several opportunities to do so.
And that’s the real problem with Andrew Hurwitz nomination. It is not that Hurwitz favors abortion on demand or that he got caught up in the judicial activism of the 1960’s and 1970’s.  It’s that, in the forty years since Roe, he doesn’t seem to have learned anything about interpreting the Constitution in an intellectually honest fashion.
Instead, long after liberal scholars stopped defending Roe’s reasoning, long after “judicial activism” became a bad word [see Curt Levey’s “Living Constitution, RIP,” National Review Online 9/30/05], and even after Obama Supreme Court nominees Sonia Sotomayor and Elena Kagan promised the Senate Judiciary Committee that they would do nothing more than strictly interpret the Constitution, Hurwitz goes on celebrating his role in one of the most activist Supreme Court decisions of all time.
Hurwitz never got the message that it’s no longer legally or publicly acceptable for judges to make stuff up and that pulling new rights from the constitutional ether is something judges deny, not brag about.
Since Hurwitz is still proud of inventing abortion rights from whole cloth, we can be sure he’ll continue to pull things from the constitutional ether if promoted from the Arizona Supreme Court to the Ninth Circuit.  Only then, the victims of his judicial activism won’t be limited to Arizona.  They will also include the residents of California, Montana, Alaska, Nevada, Idaho, Washington, Oregon, Guam and the Northern Mariana Islands – all part of the Ninth Circuit.
If Senate Majority Leader Harry Reid gets 60 votes when he tries to invoke cloture on Andrew Hurwitz’s nomination this afternoon, Hurwitz will get a lifetime seat on the Ninth Circuit.  Don’t let that happen. Immediately contact key senators (see list below) and tell them to vote no on cloture.  Do not settle for a vote against confirmation rather than cloture.  Call (202) 224-3121 to get connected with the Senate office of your choice.
Remind senators that, while voting against cloture on a judicial nominee should not be taken lightly, it is justified here because Hurwitz’s openly activist approach to judging satisfies the Gang of Fourteen’s “extraordinary circumstances” standard.  Only a few of President Obama’s judicial nominees have met the high threshold of “extraordinary circumstances” and, accordingly, the Committee for Justice has opposed only a handful of Obama nominees. But Hurwitz clearly meets the threshold. 
Most Republican senators can be counted on to vote against cloture today, but a dozen or so could use a reminder.  They include Jon Kyl (AZ), Lamar Alexander (TN), Scott Brown (MA), Saxby Chambliss (GA), Susan Collins (ME), Lindsey Graham (SC), Richard Lugar (IN), John McCain (AZ), Lisa Murkowski (AK), Olympia Snowe (ME), and John Thune (SD).  In addition, Montana Democrat Jon Tester needs to be reminded that Montana is part of the Ninth Circuit.


June 08, 2012

Rand Paul Endorses Romney

Senator Rand Paul (R-KY), tea party favorite and son of presidential candidate Ron Paul, has officially endorsed Gov. Mitt Romney. Rep. Ron Paul (R-Texas) is still in the presidential race, but his campaign has admitted this week that he lacks the delegates to win the nomination. Gov. Romney expressed his appreciation for Senator Paul’s endorsement:
"'Sen. Paul has been a leading voice in the effort to scale back the size and reach of government and promote liberty,' he said. 'I am grateful for Sen. Paul’s support and look forward to working with him to get America back on the right track.'"

Obama Recognizes Gay Supporters at Fundraiser

At a fundraiser in Beverly Hills President Obama ranked his repealed "Don't Ask, Don't Tell" among the highlights of his presidency. In a roomful of gay-rights supporters Obama said, "I could not be prouder of the work we've done on behalf of the LGBT community." The president continues to receive significant campaign contributions from his friends in Hollywood and those in the LGBT community. Andy Gardner of the Washington Post explains:
“Gay supporters have been a pillar of Obama’s fundraising strength; about one in six top Obama campaign ‘bundlers,’ who amass contributions from others, is gay, according to a Washington Post analysis. … Wednesday represented Obama’s first major outreach to gay and lesbian supporters since he declared that he is now for gay marriage, and they received him enthusiastically.”

Poll: Most Americans Want ObamaCare Overturned

“More than two-thirds of Americans hope the Supreme Court will overturn some or all of the 2010 health care law, according to a new poll conducted by The New York Times and CBS News. Just 24 percent said they hoped the court 'would keep the entire health care law in place.'"
Recent polling reveals that the majority of Americans want ObamaCare put to bed. A hefty 68 percent of those polled want to see the Court strike down at least part of ObamaCare, including 41 percent who think the Court should overturn the entire law. Although the Supreme Court Justices will decide the validity of ObamaCare based on constitutional merits, the poll reveals an interesting aversion to the health care law.

June 07, 2012

Facebook Dispels Rumor

A rumor has gone viral on Facebook this week that the social network’s status as a publicly traded company is putting users’ privacy at risk. However, Facebook affirms that nothing has changed and users do not need to be concerned with threats on privacy. Wall Street Journal relates:
“There is a ‘false rumor circulating to a small online population that Facebook is making a change related to users’ information or content they post to the site, a spokesman said in a statement. 
"'To be clear — anyone who uses Facebook owns and controls the content and information they post, as stated in our terms ... ‘That is our policy, and it always has been.’”

Romney Capable of a Scott Walker Win?

In defeating Milwaukee Mayor Tom Barrett, Walker dealt a significant knock to Wisconsin Democrats, progressives and the ranks of organized labor, who did their best to send the governor home before his term was finished. Dan Balz of the Washington Post claims Romney can hope to replicate Walker's model in two areas: money and conviction. He further elaborates:
“Obama began the campaign more than a year ago amid assumptions that he would easily raise more than his Republican opponent. But his advisers worry that they will be heavily outspent by GOP super PACs. Other than the economy, that potential funding disparity is the campaign’s biggest concern. Money may not decide the election, but Romney and the Republicans appear to have the edge there.”

DOMA Falls Short Again

The District Court Judge in New York City became the third federal judge in recent weeks to strike down the 1996 federal law that barred legally married same-sex couples from obtaining any benefits available under federal law. U.S. District Judge Barbara S. Jones ruled on Wednesday that Congress in enacting the Defense of Marriage Act had no justifiable reason for disrupting the states’ power to decide who may marry. Lyle Denniston of SCOTUS Blog further explores this issue:
“This marked the first time that a federal judge was free, because of the lack of controlling precedent in the judge’s judicial region, to adopt a broad form of protection for gay rights. Some gay rights advocates … have wanted the courts to rule that gays and lesbians are a class of people entitled to special constitutional protection, so that any law limiting their rights would have to satisfy the strictest constitutional test — that is, 'strict scrutiny.' Laws that must meet that test seldom are upheld.”

Judicial Activism & Irrational Sentencing

      I recently wrote about how judicial activists have created a constitutional right for the most brutal and depraved criminals to commit new brutality free from any punishment whatsoever, precisely because they are the most brutal and depraved.
      For select miscreants already serving life sentences, the death penalty for new crimes – with the exception of first degree murder in some states – has been rendered unavailable by unaccountable high court justices. For example, the U.S. Supreme Court has effectively decreed that escapee Ehrlich Anthony Coker had a “constitutional right” to rape Elnita Carver, under threat of death, with no punishment at all, three weeks after she gave birth.
      The Court bestowed this right upon Coker as a reward for his having committed prior violent crimes including rape, attempted murder and actual murder. Since he was already serving a life sentence and the death penalty for rape is too harsh for the moral sensibilities of justices, no further penalty could be imposed. The Supreme Court and other courts have even ruled that some convicted murderers could torture and murder fellow inmates and prison guards without punishment.
      Unsuspecting citizens might think that those with the worst records and crimes should and do receive the harshest sentences. Clearly, that is not the necessarily the case. Something is painfully wrong when a person with no prior record can receive a harsh sentence because he is not already incarcerated, but someone serving life cannot be penalized for the most barbaric new crimes because he is already serving life for the worst depravity.
      There is little basis for confidence in the judges who have given us this criminal “justice” system. These individuals or the people who appoint them should be held accountable in elections. The next election will be critical in this regard.
      For more on this subject, please see my article originally appearing here or here.

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June 06, 2012

Obama and Supreme Court

“As the world awaits the Supreme Court's ruling on ObamaCare, there's a larger story that the pundits are missing: the court's rejection of the Obama administration's increasingly extreme claims on behalf of unlimited federal power.”
Illya Shapiro writing for the Wall Street Journal argues that the Obama administration is out of sync with the Supreme Court. In three significant cases before the Supreme Court – Hosanna-Tabor Church v. Equal Employment Opportunity Commission on religious liberty, United States v. Jones on warrantless GPS search, and Sackett v. Environmental Protection Agency on rights to challenge regulatory agents actions – the court has unanimously rejected the Obama administration’s position. Shapiroo concludes that if the government loses in the ObamaCare or immigration cases " It will be because the Obama administration continue to make legal arguments that don't pass the ... test."

Wisconsin Win — A Major Boost for Republican Party

Gov. Scott Walker became a conservative icon overnight as he survived a recall election that threatened to take him out of office. Despite misleading exit polls that revealed Democrats capturing nearly 69 percent of the vote, Walker defeated Mayor Tom Barret (D) yesterday in the recall election by a significant margin. The victory has energized the Republican candidate Mitt Romney:
“‘Governor Walker has shown that citizens and taxpayers can fight back — and prevail — against the runaway government costs imposed by labor bosses,” he said. ‘Tonight voters said ‘no’ to the tired, liberal ideas of yesterday, and ‘yes’ to fiscal responsibility and a new direction.’”

June 05, 2012

Divided: Bill Clinton and Obama

Clinton notably sabotaged Obama's campaign last week when he went on television saying Mitt Romney had a "sterling" record while running Bain Capital. The Obama message is entirely the opposite. One would assume the two of them to be friends working together but their actions reveal otherwise. Roger Simon of Politico shared this insight:
“Clinton is not on Barack Obama’s campaign staff, is not a trusted adviser, does not set Obama’s strategy. But Bill Clinton is pretty good at sabotaging Obama’s strategy. … Obama does not need Clinton undercutting him. The two are not close, but they are not supposed to be enemies.”

Court Rejects Prop. 8 Appeal

The Ninth Circuit Court declined to review the February ruling that struck down California’s Proposition 8 amendment banning same-sex marriage. Because the case is being put on hold for 90 days it won’t likely be heard before the Supreme Court until the new term, starting October 1. The SCOTUS blog relays Circuit Judge Diarmuid O’Scannlain’s dissenting opinion:
“[The majority has now] declared that animus must have been the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia … Even worse, we have overruled the will of seven million California Proposition 8 voters … We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.”

June 04, 2012

Most Americans Back NRA

A recent Reuters poll revealed that 68% of Americans view the National Rifle Association favorably. Eighty-two percent of the Republicans perceive the gun lobbying group in a positive light as well as 55 percent of Democrats — findings that run counter to the perception of Democrats as anti-NRA. Governor Romney recently spoke at a NRA convention and vowed to reverse what he considers the restrictive gun policies of President Barack Obama’s administration. Reuters further relates:
“Most of the 1,922 people surveyed nationwide from April Monday through Thursday said they supported laws that allow Americans to use deadly force to protect themselves from danger in their own home or in a public place…
“The poll results were welcomed by the NRA, which is one of the most powerful lobby groups in the country ... as it seeks to protect and expand gun rights across the United States.”

Christie’s Bipartisan Appeal Takes Hit

Gov. Christie is often praised for reaching across the aisle and overlooking party differences. However, the New Jersey governor is facing criticism for his prolonged stalemate over his short-staffed Supreme Court, now missing two of its seven justices. Despite the bipartisan criticism Christie remains resolute, Matt Katz explains:
“The Democratic-controlled Senate Judiciary Committee has turned down two Christie nominees for the Supreme Court…They are the only gubernatorial nominees to the Supreme Court ever to be blocked by a Legislature under the modern-day constitution… 
“Christie said he refused ‘to be a petulant child who's going to go off and walk into the corner and say, 'Well, now I'm not going to work with you on anything else.'   
“Otherwise, he said, ‘any defeat you have becomes debilitating.’”

Politics Removed From Supreme Court

More than half of the Supreme Court decisions in the current term have been unanimous; disproving the theory that supposes the nation's court is split between a conservative majority and a fortified liberal minority. It’s interesting to note that of the 58 decisions this year so far, 30, or 52% have been 9-0 votes. Daniel Fisher of Forbes reports:
“In all, 87% of the decisions so far have garnered more consensus than the 5-4 split usually associated with conservative decisions in the court run by Chief Justice John Roberts. The five-year average for 5-4 votes is 24%. 
"Only eight cases so far out of the 2011 session have been decided on 5-4 votes, and only three of those featured the conservative majority of Justices John Roberts, Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito.”

June 01, 2012

Edward’s Case Ends in Mistrial

Wall Street Journal reports the campaign-finance lawsuit of former presidential candidate John Edwards ended in a mistrial. Edwards was accused of accepting more than $900,000 from two donors to hide an affair with a campaign worker, Rielle Hunter, as well as her pregnancy with Mr. Edward’s child. The trial doesn’t reflect well for the Department of Justice:
"The mistrial represents a setback for the Justice Department's Public Integrity unit, which had relied on an aggressive interpretation of campaign-finance laws to bring the charges against Mr. Edwards. The unit has been trying to rebuild its reputation following the bungled corruption trial against the late Alaska Sen. Ted Stevens."
More on Ted Steven’s trial: "Prosecutors Cited for Misconduct in Stevens Case"

Asians Weigh in on Affirmative Action

Four Asian American organizations have joined together to file an amicus brief opposing the University of Texas affirmative action program in connection to the Supreme Court case Fisher v. Texas. The brief claims the policy at the University of Texas at Austin hurts Asian Americans, not just white applicants. Scott Jaschik quotes the brief:
“‘As aspiring applicants capable of graduating from these institutions outnumber available seats...Particularly hard-hit are Asian-American students, who demonstrate academic excellence at disproportionately high rates but often find the value of their work discounted on account of either their race, or nebulous criteria alluding to it.’”